Category: Uncategorized

Federal LGBT Protection In The Workplace On The Horizon?

Many Americans who believe that federal law protects the LBGT community from employment discrimination are in for a surprise. A national poll, taken in 2011, showed that 90 percent of Americans believed Congress had already passed a law protecting employees from workplace discrimination based on sexual orientation. It turns out that those assumptions were wrong. However, protection does exist in some states. California is one of those states. In 2013, any person who lives in a state or city without such a law can be fired simply for their sexual orientation.

Currently 29 of 52 states do not explicitly forbid sexual orientation-based discrimination. Also, 33 states lack protection for gender-based discrimination. A study by the Center for American Progress found that more than 50 percent of all American employees lack protection. That fact may soon be about to change. On Aug. 15th, a U.S. Senate leadership aide reported that federal legislation banning discrimination based on sexual orientation and gender identity was passed by a committee and could be voted on by the entire Senate as early as September.


Federal Removal Unlikely in PAGA-Based Actions

The trend is for plaintiffs’ attorneys to file representative actions for violation of the Private Attorneys General Act (“PAGA”), pursuant to Labor Code section 2698, et seq., rather than class actions.  However, the Ninth Circuit Court of Appeal was presented with an issue of first impression – whether civil penalties sought under PAGA could be aggregated to meet the amount in controversy of $75,000 for removal under diversity.

In Urbino v. Orkin Services of California, Inc., the appellate court clarified that civil penalties sought under PAGA cannot be aggregated for purposes of removal based on diversity grounds.  The plaintiff in Urbino filed a representative action against his former employers Orkin Services of California, Inc. and Rollins, Inc. asserting claims for failure to pay overtime, failure to pay vacation wages, failure to provide meal periods and failure to provide accurate itemized wage statements.

Defendants removed the action to federal court citing diversity as the basis for jurisdiction.  In support of removal, defendants presented evidence that over 800 employees would be affected in the action and aggregating their claims would total $400,000, which satisfies the amount in controversy requirement.

Plaintiff filed a motion to remand claiming his individual claims should be the only amount the court should consider in determining the amount in controversy.  Plaintiff’s individual claims totaled only $11,000, which is insufficient to meet diversity jurisdiction.  Nevertheless, the trial court denied plaintiff’s motion to remand allowing penalties to be aggregated among plaintiff and other aggrieved employees.

In response, Plaintiff filed an appeal.  On appeal, the Ninth Circuit Court found that the right to recover for violations under the California Labor Code is held individually.  Applying this rationale, the appellate court ruled that PAGA claims cannot be aggregated to meet the amount in controversy requirement under diversity.

This decision yields a significant victory for plaintiffs’ wage and hour attorneys because it forces the defendant employer to litigate PAGA actions in state court, a friendlier forum for employees.


IRS Changes The Rule On 18% Mandatory Gratuities

 The IRS has recently announced that the 18% mandatory gratuity policy for large party dining will no longer be categorized as a tip.  Since a “tip” is supposed to be something the customer leaves at their discretion, the compulsory 18% policies utilized by many restaurants today change the character of the money to a wage—not a tip.

This IRS first came up with the rule in 2012, and it was to take effect on January 1, 2013.  However, the IRS delayed the rule’s effect until January 2014 in order to allow restaurants to catch-up and amend their policies.

What does this all mean?  More freedom for patrons, although, some would argue that adding the 18% automatically made it a bit more convenient for those times you’re splitting a bill 9 ways.  For servers, it depends on whether or not the restaurant continues to utilize the policy or changes their ways altogether.  Some restaurants have found success with simply listing the tip amounts for 15%, 18%, and 20% intervals ensuring a decent gratuity left for their wait staff.


Sleight of Hand Not Allowed

Arbitration Agreements – Sleight of Hand Not Allowed

Avery v. Integrated Healthcare Holdings

The California Court of Appeal recently considered whether or not plaintiffs seeking to pursue claims as a class for wage and hour violations could be compelled to arbitrate claims based on a series of documents purporting to reflect acknowledgements to arbitrate such claims. The Court of Appeal affirmed the trial court decision finding no enforceable arbitration agreement existed because the incomplete and confusing patchwork of documents Defendant relied upon were not sufficient to establish an agreement to arbitrate. The Court reasoned that Defendant needed to demonstrate that plaintiffs agreed to the specific arbitration agreement that Defendant contended bound plaintiffs to arbitrate their claims. Because none of the documents referred to the specific employee handbook used as the source of the arbitration policy, the Court found that even if plaintiffs signed the acknowledgements, the acknowledgements were not sufficient to establish that plaintiffs had agreed to the arbitration policy.

Fido and Friends

Many people recognize “Guide” dogs, who assist the visually impaired, and may even have seen other “Service” dogs that assist persons with various disabilities, but recent California regulations pave the way for many more furry and feathered friends to assist their disabled owners in the workplace.

The new guidance on disability accommodations in the workplace specifies that allowing an “Assistive animal” to accompany a disabled employee may be a reasonable accommodation that an employer needs to consider.  Specific cases include guide dogs, signal dogs, service dogs, and a new category: “‘Support’ dog[s] or other animal[s] that provide[] emotional or other support to a person with a disability.”  The regulations go on to point out that a support animal may be a reasonable accommodation for a person with major depression or similar mental disabilities. Continue reading “Fido and Friends”